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State v. McAnulty

Supreme Court of Oregon, En Banc

October 30, 2014

STATE OF OREGON, Respondent,
v.
ANGELA DARLENE McANULTY, Appellant

Argued and Submitted March 20, 2014

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On automatic and direct review of the judgment of conviction and sentence of death imposed by the Lane County Circuit Court, No. CC 200927457, Kip W. Leonard, Judge.

Daniel J. Casey, Portland, argued the case and filed the briefs for appellant.

Timothy A. Sylwester, Assistant Attorney General, filed the brief and argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jamie Contreras, Assistant Attorney General.

OPINION

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[356 Or. 434] BALDWIN, J.

This case is before us on automatic and direct review of defendant's judgment of conviction bye guilty plea and sentence of death, following a penalty-phase trial before a jury, for one count of aggravated murder. See ORS 163.095;

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ORS 138.012(1); ORAP 12.10. For the reasons stated below, we affirm defendant's judgment of conviction and sentence.

I. BACKGROUND

We begin with an overview of the facts admitted into evidence during defendant's penalty-phase trial. See State v. Acremant, 338 Or. 302, 305, 108 P.3d 1139, cert den, 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) (reciting facts from penalty-phase evidence where defendant pleaded guilty to aggravated murder); ORS 163.150(1)(a) (regarding procedures for penalty-phase proceedings).

In 1994, defendant gave birth to her daughter, Jeanette, in California. Approximately one year later, defendant lost custody of Jeanette due to drug use, neglect, and physical abuse. Several years later, defendant gave birth to another daughter, P, and regained custody of Jeanette.

Defendant then met and married Richard, giving birth to their son, R, shortly thereafter. Richard became Jeanette's stepfather. In early 2006, the family moved to a house on Robin Avenue in Eugene, Oregon, and Jeanette enrolled in middle school. Jeanette's classmates and teachers soon noticed that Jeanette appeared skinny and was always hungry. While at school, Jeanette's friends shared food with her, and she obtained food from lunch aides.

Around that time, Jeanette wrote a letter to a school official explaining that she was denied food at home, forced to eat chili peppers, and forced to sit on her knees for long periods of time for punishment. School officials alerted the Department of Human Services (DHS), which opened an investigation into the allegations. A DHS caseworker interviewed and conducted a home visit at that time; however, after gathering conflicting statements from family members and observing the family home stocked with food, DHS ultimately closed the file as " unable to determine." After school [356 Or. 435] officials and a parent of one of Jeanette's friends made additional reports to DHS about suspected abuse, defendant removed Jeanette from school and homeschooled her. Defendant did not homeschool her other two children.

In the home, defendant treated Jeanette differently from her other children. Jeanette was not allowed to speak with her siblings. Defendant put locks on the kitchen cupboards and controlled Jeanette's eating. She provided Jeanette with less food than she gave to the rest of the family and sometimes forced Jeanette to forgo meals. Defendant also controlled what Jeanette drank. Defendant removed hose spigots, turned off the water supply under the sinks, and installed locks on the bathroom. She forced Jeanette to obtain permission before drinking or using the restroom, and sometimes denied Jeanette water or use of the bathroom.

Defendant also subjected Jeanette to physical punishment for purported disobedience, but did not similarly target P or R. Defendant would force Jeanette to eat hot peppers, or stand or kneel in a corner for long periods of time, sometimes while holding heavy objects. Defendant punched, slapped, scratched, and kicked Jeanette all over her body, causing bruising and cuts and sometimes knocking out her teeth. Defendant also would repeatedly whip Jeanette's bare back, bottom, and legs with belts and sticks, causing lacerations that would bleed. Defendant often isolated Jeanette in a single bedroom to commit the violent acts, and turned on the vacuum or turned up the volume on the television to prevent others from overhearing. After the most violent attacks, defendant put iodine on Jeanette's wounds and attempted to bandage the injuries herself, declining to seek professional medical or dental care for Jeanette. Richard did not intervene or pursue treatment for Jeanette's injuries.

During the summer of 2009, after Richard suffered a heart attack, the family moved from their house on Robin Avenue to a home on Howard Avenue. Defendant's abuse, torture, and starvation of Jeanette intensified at that residence. Jeanette lost weight and sustained serious physical injuries, some of which became infected. In early December, Jeanette suffered a significant blow to her head, after which she appeared confused and had difficulty walking [356 Or. 436] or standing. On

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December 9, 2009, Jeanette fell asleep on the floor and became unresponsive. Defendant and Richard placed Jeanette in the bathtub and called Richard's mother, who told them to call 9-1-1. Richard then called 9-1-1. Emergency responders arrived and rushed Jeanette to the hospital, where she was pronounced dead. Given the severity of Jeanette's prolonged starvation, dehydration, physical injuries and localized infections, authorities were unable to pinpoint a single cause of death. The cause of death instead was listed as " multifactoral abuse and neglect."

Defendant and Richard accompanied investigators to the sheriff's office for questioning. Before leaving the hospital, defendant and Richard privately discussed assigning blame to Richard and the possibility that authorities might impose a lighter sentence on him as a result of his heart condition. At the sheriff's office, detectives separated the couple, read them their Miranda rights, and interviewed them. Richard initially told authorities that he had " spanked" Jeanette, but later admitted that he had not been truthful and had agreed to take the blame. Defendant also initially assigned blame to Richard, but then later made self-incriminating statements.

Detectives executed search warrants for both the Howard Avenue and Robin Avenue homes, where police discovered blood and other DNA evidence and observed an apparent attempt to sanitize some of that evidence. Also recovered from a garbage bin at the Howard Avenue home were several blood-stained items, including sticks, belts, clothing, bedding, and a piece of cardboard on which defendant forced Jeanette to sleep.

The state charged defendant by indictment with one count of aggravated murder, ORS 163.095, and one count of tampering with physical evidence, ORS 162.295. Before trial, defendant moved to suppress the statements that she had made to detectives. The trial court denied the motion. On the first day of trial, defendant pleaded guilty to the offenses charged. The case proceeded to a penalty-phase trial before a jury to determine defendant's sentence on the aggravated murder conviction. At the conclusion of trial, the [356 Or. 437] jury unanimously returned affirmative findings to each of the following questions under ORS 163.150(1)(b):

" (A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
" (B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
" (C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
" (D) Whether the defendant should receive a death sentence."

The trial court sentenced defendant accordingly, and this court's automatic and direct review of defendant's conviction and sentence followed.

II. ANALYSIS

On review, defendant raises 18 assignments of error. We have reviewed all assignments of error, and we conclude that defendant's first assignment of error relating to the trial court's ruling on her motion to suppress is well taken. However, we further conclude that the error was harmless. We begin with that assignment of error, followed by defendant's remaining assignments that merit discussion.[1]

A. Denial of Pretrial Motion to Suppress

Before trial, defendant moved to suppress statements that she had made to detectives in four interrogations that occurred during the day following Jeanette's death. Defendant argued that the statements had been obtained in violation of her right to remain silent under Article I, section 12, of the Oregon Constitution[2]

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and the Fifth Amendment to the United States Constitution.[3] [356 Or. 438] The trial court denied the motion, and defendant entered an unconditional guilty plea to the charges against her. Defendant's case then proceeded to the penalty phase, and defendant's statements to detectives were admitted without objection.

Defendant first assigns error to the trial court's denial of her motion to suppress. As a threshold matter, however, the state argues that this court cannot review defendant's challenge. The state notes that defendant failed, when entering her guilty plea, to make it conditional by reserving " in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion." ORS 135.335(3). As a result, the state contends that defendant's claim that the trial court erred by denying her pretrial motion to suppress is not reviewable under ORS 138.050(3) (limiting issues reviewable on appeal from sentence on plea of guilty or no contest).

Whether this court, on automatic and direct review of a sentence of death, may review a defendant's challenge to a pretrial ruling when the defendant has failed to comply with ORS 135.335(3) is an issue of first impression.[4] We examine that issue first, because its resolution controls whether this court may review defendant's first assignment of error.

1. Threshold issue of reviewability

It is a " well-settled principle that '[a] party does not have an inherent right to appellate court review; '" rather, the party must show that the matter from which appeal is taken is appealable under a provision of law. State v. Cloutier, 351 Or. 68, 74, 261 P.3d 1234 (2011) (alteration in original; quoting Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983)). ORS 138.012(1) provides this court with original jurisdiction in death penalty cases:

[356 Or. 439] " The judgment of conviction and sentence of death entered under ORS 163.150(1)(f)[5] is subject to automatic and direct review by the Supreme Court."

See also ORAP 12.10 (specifying rules for automatic review of death sentence cases).

The state does not dispute that ORS 138.012 provides this court with original jurisdiction over this appeal. Rather, the state contends that other statutory provisions apply to limit this court's scope of review. Specifically, the state construes the text of ORS 138.012 as providing only a jurisdictional grant that does not control the permissible range of appellate review. The state points to ORS 138.050 and ORS 138.222, which include provisions that limit appellate review in criminal cases where a defendant has pleaded guilty or no contest without qualification and without invoking ORS 135.335(3). Because defendant entered an unconditional guilty plea and did not comply with the requirements of ORS 135.335(3), the state contends that those limitations apply.

The state relies on the following text in ORS 138.050:

" (1) Except as otherwise provided in ORS 135.335, a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:
" (a) Exceeds the maximum allowable by law; or

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" (b) Is unconstitutionally cruel and unusual.
" * * * *
" (3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:
" (a) Exceeds the maximum allowable by law; or
" (b) Is unconstitutionally cruel and unusual."

[356 Or. 440] As applied to this case, the state reads ORS 138.050(3) as limiting appellate review to consideration of only the judgment or order described in ORS 138.053,[6] except as otherwise provided in ORS 135.335. The state argues that a judgment or order under ORS 138.053 does not include a disposition on a pretrial ruling and that the exception for ORS 135.335 that would permit a broader scope of review does not apply here because defendant failed to enter a conditional plea. See ORS 135.335(3).

The state also relies on the following text of ORS 138.222:

" (1) Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided by this section.
" * * * *
" (4) In any appeal, the appellate court may review a claim that:
" (a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;
" * * * *
" (7) Either the state or the defendant may appeal a judgment of conviction based on the sentence for a felony committed on or after November 1, 1989, to the Court of Appeals subject to the limitations of chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which:
" (a) A sentence was entered subsequent to a plea of guilty or no contest * * *."

In the state's view, because defendant's sentence was entered subsequently to her guilty plea, ORS 138.222(4)(a) limits review to consideration of either the lawfulness of a sentence [356 Or. 441] or whether an error occurred in imposing the sentence. The state contends that those limitations preclude review of the pretrial ruling on defendant's motion to suppress.

The state's position on review consists of two overlapping propositions. First, because nothing in ORS 138.012(1) purports to prescribe any standard of review, that statute does not supersede or exempt this court in reviewing a death penalty case from the scope of review limitations imposed by ORS 138.050(3) and ORS 138.222(4)(a). Second, the limited review in this case is a direct consequence of defendant's failure to comply with the conditional plea process outlined in ORS 135.335(3).

a. Scope of review

We first address the scope of review issue before examining the effect of the conditional plea statute in more detail. The state is correct that ORS 138.050 and ORS 138.222 impose significant limitations on the scope of review in criminal cases that fall within their purview. However, the state's reading of those provisions overlooks significant textual and contextual clues that demonstrate that the legislature intended the appeals undertaken in ORS 138.050 and ORS 138.222 to be distinct from the automatic and direct review process that occurs in death penalty cases. As a result, as explained below, we conclude that the legislature did not intend the scope of review limitations provided under ORS 138.050 and ORS 138.222 to apply to limit a direct death penalty review in this court. We arrive at that conclusion by examining the text and context of the

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various statutes. See State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009) (describing methodology). We also consider this court's prior construction of the statutes at issue. Blacknall v. Board of Parole, 348 Or. 131, 141-42, 229 P.3d 595 (2010).

To begin, the text of ORS 138.012(1) contrasts significantly with the text of ORS 138.050 and ORS 138.222. As noted, ORS 138.012(1) provides for " automatic and direct review by the Supreme Court" in all cases in which a jury convicts a defendant of aggravated murder and answers the relevant death penalty questions outlined under ORS 163.150(1)(b) in the affirmative. Under that statute, an appeal to this court occurs as a matter of course after the [356 Or. 442] imposition of a death sentence, bypassing any intermediate review that the Court of Appeals would typically conduct. This court has reviewed death sentences in a manner consistent with that textual interpretation. See, e.g., State v. Montez, 309 Or. 564, 789 P.2d 1352 (1990) (engaging in automatic and direct review; noting that review considered mandatory). See also ORAP 12.10(1) (" Whenever a defendant is sentenced to death, the judgment of conviction and sentence of death are subject to automatic and direct review by the Supreme Court without the defendant filing a notice of appeal." )

In contrast to the automatic and direct review provided under ORS 138.012(1), ORS 138.050 expressly refers to an appeal process that is not mandatory and is not initiated in this court. In Cloutier, 351 Or. 68, 261 P.3d 1234, this court undertook an extensive examination of the meaning and history of ORS 138.050. The court explained that ORS 138.050 must be read with ORS 138.040 and that, taken together, those provisions authorize appeal and review of sentences for criminal offenses. Cloutier, 351 Or. at 91. Of particular significance to this case, as the text of those provisions makes clear, an appeal in such criminal cases is at a defendant's option and goes before the Court of Appeals; there is no right of appeal to or review by this court. ORS 138.040(1) provides a wide scope of review on appeal, but ORS 138.040 does not encompass the process for appeal from a sentence on a plea of guilty or no contest as provided for under ORS 138.050.

Similarly, ORS 138.050 states that " a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order" if the defendant makes a colorable showing that the disposition meets either of the two conditions described therein. ORS 138.050(1) (emphasis added). Depending on the court in which the judgment or order originates, ORS 138.050 provides that the appeal be taken either " to the Court of Appeals" or " to the circuit court for the county." ORS 138.050(2). Thus, the text of ORS 138.050 shows that, for appeals from criminal convictions and sentences, the legislature envisioned a voluntary process that provides for intermediate review in the Court of Appeals. That procedure is distinct from the automatic and direct review provided under ORS 138.012.

[356 Or. 443] ORS 138.222 authorizes an appeal in the Court of Appeals at defendant's option. In 1989, the legislature adopted ORS 138.222 as part of a package of new sentencing guidelines legislation. That statute expressly authorizes appeal of convictions from pleas of guilty or no contest, and states that " [e]ither the state or the defendant may appeal " from a judgment of conviction and sentence in such cases. ORS 138.222(7) (emphasis added). Under the terms of the statute, such an appeal is made " to the Court of Appeals." Id. Thus, as with ORS 138.050, ORS 138.222 contemplates a criminal appeal that is initiated by the defendant filing a notice of appeal in the Court of Appeals.

The text of ORS 138.222 provides that, " [n]otwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided by this section." ORS 138.222(1) (emphasis added); see also Cloutier, 351 Or. at 91 (noting that ORS 138.222 governs appeal and review of sentences imposed for felonies). ORS 138.222 then sets forth various limitations on the permissible scope of review on appeal, including provisions that apply to sentences of probation, sentences of imprisonment, and sentences that depart from the

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presumptive sentencing range. ORS 138.222 makes no reference to a sentence of death.

Significant distinctions also exist between the remand provisions of ORS 138.222 and ORS 138.012. For example, ORS 138.012 permits review of both the guilt and penalty phases of a death penalty case. If this court determines that prejudicial error occurred in the penalty phase, ORS 138.012(2)(a) provides that a sentence of death may be set aside. It specifies the procedure to occur on remand, which, depending on the course that the state elects, requires the trial court either to sentence a defendant to imprisonment for life pursuant to ORS 163.105(1)(c) or to empanel a jury to determine whether a defendant should again be sentenced to death pursuant to ORS 163.150(1)(f). ORS 138.222 makes no reference to such a process in its remand provisions. See ORS 138.222(5)(a). Those inconsistencies suggest an intention that the two statutes will apply in different settings.

[356 Or. 444] This court's case law also suggests that the automatic and direct review provided under ORS 138.012(1) is unique. The court has recognized that a death sentence is different both in the legislative enactments that control how it is enforced and in the overall significance of the penalty. In State v. Haugen, 349 Or. 174, 243 P.3d 31 (2010), this court declined to apply ORS 137.123--which governs consecutive sentences--to a sentence of death, because it determined that that statute was inconsistent with the more specific statutes permitting a death sentence for aggravated murder. The court explained that

" [t]he statutes providing for the imposition of a sentence of death are a more specific expression of legislative intent when compared with a sentence of incarceration, because a sentence of death is exceptional. For that reason, * * * the legislature has enacted a number of specific statutes to regulate the manner in which a death sentence moves toward the issuance of a death warrant and the date of execution."

Id. at 203-04; see also State v. Guzek, 322 Or. 245, 264, 906 P.2d 272 (1995) ( Guzek II ) (" Capital cases require our most vigilant and deliberative review. We agree * * * that '[d]eath is a punishment different from all other sanctions in kind rather than degree' so that 'there is a difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.'" (quoting Woodson v. North Carolina, 428 U.S. 280, 303-05, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)).

In sum, we conclude that the legislature did not intend the scope of review limitations contained in ORS 138.050 and ORS 138.222 to apply to this court's automatic and direct review of a conviction and sentence of death under ORS 138.012(1). Further, nothing in ORS 138.012(1) purports to limit this court's ability to review defendant's assignment of error. Consequently, we may review defendant's challenge under ORS 138.012(1). That conclusion, however, does not directly answer what effects, if any, flow from defendant's failure to enter a conditional plea pursuant to ORS 135.335(3). We therefore turn to that issue.

[356 Or. 445] b. Effect of unconditional plea

ORS 135.335 was originally enacted in 1973 to permit pleas of guilty, not guilty, and no contest. See Or Laws 1973, ch 836, § 159. The statute was amended in 1999 to add a further provision permitting a defendant to enter a conditional guilty plea. See Or Laws 1999, ch 134, § 1. The statute now provides, in part:

" With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea."

ORS 135.335(3).

The 1999 enactment of subsection (3) of ORS 135.335 has two primary effects. First, for criminal defendants who plead guilty or no contest, it gives them a statutorily recognized path to obtain appellate review of a pretrial ruling. See Or Laws 1999, ch 134, § 1. Previously, a defendant who had pleaded guilty or no contest to a criminal charge had no procedural way to challenge a trial court's

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ruling on a pretrial motion. As this court observed in State v. Dinsmore, 342 Or. 1, 6-7, 147 P.3d 1146 (2006), before 1999, a defendant who, for example, was unsuccessful in pretrial efforts to suppress evidence was typically required to enter a plea of not guilty and proceed to trial--often a trial on stipulated facts--to preserve the ability to contest the adverse pretrial ruling on that motion.

Second, the enactment of ORS 135.335(3) provides a statutory mechanism for a criminal defendant to later withdraw a guilty plea if that defendant prevails in challenging the pretrial ruling reserved for review. As the last sentence of that subsection states, a defendant who is successful on appeal may withdraw his or her plea and enter a new plea of guilty, not guilty, or no contest. If a defendant withdraws the plea and enters a plea of not guilty, then that defendant may proceed to trial with the benefit of a successful challenge to an earlier pretrial ruling. See also Dinsmore, 342 Or. at 7 (" [W]hen a conditional plea is entered [356 Or. 446] as an expediency under ORS 135.335(3), the parties begin anew on the charges subject to the plea if the defendant's appeal is successful and the defendant opts to withdraw the conditional plea." ).

But, by providing a mechanism to obtain review on a pretrial ruling and later withdraw a guilty or no contest plea, the text of ORS 135.335(3) carries with it an implicit limitation. Specifically, if a criminal defendant does not enter a conditional plea, the provisions of subsection (3) do not apply. Thus, a defendant does not have the benefit of a statutorily recognized path for appellate review. Even if a separate provision of law nonetheless permits appellate review, the defendant would have no statutorily recognized right to later withdraw her guilty or no contest plea on the basis that a particular pretrial ruling constituted reversible error. Thus, the plea would remain intact, effectuate a waiver of the right to trial, and result in a conviction of the offense for which the plea was entered. See also ORS 135.345 (regarding effect of no contest plea).

Here, in entering her guilty plea, defendant did not attempt to reserve in writing her ability to challenge the trial court's adverse determination on any specified pretrial ruling. Although this court may review defendant's assignment of error pursuant to ORS 138.012(1), defendant's failure to comply with ORS 135.335(3) precludes a withdrawal of her plea. Defendant's conviction therefore remains intact, effectuates a waiver of the right to trial, and results in a conviction on the charged offenses.

The state, however, advances a further effect of ORS 135.335(3) in relation to defendant's claim of error. In the state's view, defendant's unconditional guilty plea amounted to a complete waiver of any claims relating to the adverse pretrial rulings. Because defendant did not renew her objection to the admission of the evidence during the penalty trial, the state maintains that defendant cannot now challenge the admission of those statements during the penalty phase. We disagree. Although the functional effect of defendant's unconditional plea precludes her from obtaining a reversal of her conviction through a challenge to the trial court's pretrial ruling on her motion to suppress, [356 Or. 447] we find nothing in the text or context of ORS 135.335(3) that prevents her from challenging, on automatic and direct review, the ruling as it relates to the imposition of her death sentence.[7] Moreover, ORS 163.150(1)(a) prohibits the admission, during penalty proceedings, of " any evidence secured in violation of the Constitution of the

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United States or of the State of Oregon." In other words, the merits of the arguments made in defendant's pretrial motion also apply to the penalty-phase proceedings.

As the state points out, during the penalty phase, defendant did not object to the admission of defendant's statements that were the subject of defendant's pretrial motion to suppress. On review, however, we find applicable the rule of preservation that permits a reviewing court to consider issues previously litigated and decided notwithstanding a lack of relitigation at trial. See State v. Foster, 296 Or. 174, 183-84, 674 P.2d 587 (1983) (concluding that pretrial motion preserved issue notwithstanding lack of relitigation at trial because a sufficient offer of proof was made " to permit the court to rule intelligently" and " the judge gave a final ruling" ); see also State v. Pitt, 352 Or. 566, 574-75, 293 P.3d 1002 (2012) (same); Acremant, 338 Or. 302, 108 P.3d 1139 (death penalty case where defendant pleaded guilty and the court considered the defendant's challenge to an adverse pretrial ruling when defendant had made no objection at the penalty trial and scope of review was not contested).

Defendant argued in her pretrial motion to suppress that her statements were inadmissible because they were obtained in violation of her constitutional rights. The trial court held a hearing on the issue, considered the evidence, and made findings of fact and conclusions of law. Thus, [356 Or. 448] defendant alerted the trial court to the purported error, and the court considered the merits of defendant's motion and ruled on it. After defendant entered her plea, the trial court empanelled a jury for a penalty-phase trial. At the time the evidence was admitted during the penalty phase, the trial court was on notice of defendant's position regarding that evidence. See Foster, 296 Or. at 183-84; Pitt, 352 Or. at 574. See also ORS 163.150(1)(a) (prohibiting the admission of " any evidence secured in violation of the Constitution of the United States or of the State of Oregon" ).

We therefore conclude that we may consider defendant's first assignment of error on automatic and direct review under ORS 138.012(1).[8] However, as a result of defendant's unconditional plea, she cannot now withdraw her plea, and her conviction remains intact. Accordingly, we examine her challenge to the trial court's ruling on her pretrial motion to suppress only as it relates to the penalty phase of her trial. We now turn to the merits of defendant's suppression argument.

2. Right against self-incrimination

Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United Stated Constitution both protect against compelled self-incrimination. Pursuant to those provisions, a criminal defendant's admissions will ordinarily be suppressed if they are obtained in violation [356 Or. 449] of the right to remain silent or are the product of coercion. See, e.g., State v. Vondehn, 348 Or. 462, 474-75, 236 P.3d 691 (2010); Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Defendant contends that the trial court should have suppressed statements that she made to detectives in four interrogations following

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Jeanette's death.[9] Defendant points to three invocations of her right to remain silent that occurred during the first interrogation. She argues that detectives persisted in questioning her after each of those invocations and that, as a result, the statements that followed were obtained in violation of her rights. She further contends that those violations created a coercive environment that carried forward through the subsequent interrogations and created the impression that the continued assertion of her rights would be meaningless. As a result, defendant submits that all statements that followed her invocations--even those occurring in subsequent interrogations--must be suppressed.

We review defendant's challenge for errors of law. See State v. James, 339 Or. 476, 481, 123 P.3d 251 (2005). In doing so, we are " bound by the trial court's findings of historical fact if evidence in the record supports them." Id. (citing Ball v. Gladden, 250 Or. 485, 487-88, 443 P.2d 621 (1968)). As we will explain, we conclude that defendant's right to remain silent was violated when detectives continued questioning her after her second and third invocations that occurred during her first interrogation. We further conclude, however, that her statements in subsequent interrogations were voluntary and that any error in admitting the statements from the first interrogation was harmless.

a. First interrogation

On December 9, after Jeanette was pronounced dead, defendant voluntarily accompanied investigators to the sheriff's station from the hospital. Defendant rode uncuffed in the front seat of an unmarked patrol car, and Richard followed in a separate patrol car. At the station, defendant remained in a room for approximately one hour while detectives interviewed Richard in another room. A detective was [356 Or. 450] either in the room with defendant or was standing outside the room during that time.

At about 1:00 a.m. on December 10, Detectives Fenley and Hoberg moved defendant to an interview room and began her first interrogation. The detectives read defendant her Miranda rights. Defendant said that she understood her rights and signed a form to that effect. Defendant was not handcuffed or placed under arrest, and the detectives told her that the interview was optional and would be recorded.

The first interrogation lasted approximately one hour and 45 minutes. Fenley and Hoberg took turns asking questions. Defendant initially told detectives that only Richard had " spanked" Jeanette and had put her on time-outs. She blamed many of Jeanette's injuries on Jeanette's own clumsiness and her " picking" at her scabs. Defendant provided various explanations for Jeanette's low weight, but generally maintained that Jeanette ate " a lot." Defendant also explained that she had turned the water off under the sinks to prevent Jeanette from drinking at night. Defendant eventually admitted to personally " spanking" Jeanette, but claimed she had done so only three times. She also admitted to using a belt during the " spankings" and to giving Jeanette a " pat on the butt" with a stick. Defendant stated that some blood evidence in the home was the result of a belt causing Jeanette's scabs to break open. She also admitted that she had cleaned up some of the evidence of Jeanette's physical injuries.

After about an hour, defendant asked " Can I see my husband?," to which Fenley responded, " I can't promise you that." Defendant then asked, " Can I please go out of here?," to which Fenley responded, " I think we're close to being done, then you can go out of here." The following exchange then occurred:

" DEFENDANT: I want to go see my husband, please, let me go see my husband. * * * [P]lease let me go see him, please.
" HOBERG: Well, the reason, you know, obviously we--
" DEFENDANT: Is it because he doesn't want to see me?
[356 Or. 451] [FIRST INVOCATION]

Page 667

" HOBERG: No, the reason that we keep you separated is because we have to get your story and his story, if we get them combined--
" DEFENDANT: I'm done, I don't want to talk anymore."

(Emphasis added).

The interrogation continued for a short period of time with defendant making statements, asking questions, and occasionally asking to see Richard. Detectives generally did not attempt to solicit additional information at that time, but did ask some clarifying questions in response to defendant's statements and questions. Then the following exchange occurred:

" HOBERG: Well, if you don't want to talk, the[n] I'm going to (inaudible).
" DEFENDANT: I don't know what else to say. * * *
" HOBERG: Well, I mean, I'm not going to ask you any questions because you said you didn't want ...

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